Citation NR: 9621947
Decision Date: 08/06/96 Archive Date: 08/15/96
DOCKET NO. 94-19 928 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Whether a July 18, 1985, decision by the RO, denying
entitlement to service connection for a psychosis, was
clearly and unmistakably erroneous.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Daniel G. Krasnegor, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1976 to
October 1980.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal of a September 1993 rating determination by
the Department of Veterans Affairs (VA) Regional Office (RO).
In a June 1996 statement, the veteran's representative put
forth an argument that the veteran should be granted service
connection for an acquired psychiatric disorder. That issue
is not now properly developed for appellate review, and is
referred to the RO for appropriate action.
CONTENTIONS OF VETERAN ON APPEAL
The veteran maintains that the July 1985 RO decision which
denied service connection for a psychosis was clearly and
unmistakably erroneous. He states that his psychotic
problems were first present during service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran's claim of clear
and unmistakable error in the July 1985 RO lacks legal merit,
and that the claim must be dismissed.
FINDINGS OF FACT
1. In July 1985, the RO denied service connection for a
psychosis.
2. The July 1985 RO decision was affirmed by a December 1985
Board decision.
CONCLUSION OF LAW
The July 1985 rating decision was subsumed by the December
1985 Board decision; no claim of clear and unmistakable error
in the July 1985 rating decision exists as a matter of law.
38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. §§ 3.105(a),
20.1104 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The law grants a period of 1 year from the date of the notice
of the result of the initial determination for initiating an
appeal by filing a Notice of Disagreement; otherwise, that
determination becomes final and is not subject to revision on
the same factual basis in the absence of clear and
unmistakable error. 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. § 3.105(a) (1995).
When a determination of the agency of original jurisdiction
is affirmed by the Board of Veterans' Appeals, such
determination is subsumed by the final appellate decision.
38 C.F.R. § 20.1104.
When a claim is disallowed by the Board, the claim may not
thereafter be reopened and allowed and a claim based upon the
same factual basis may not be considered. 38 U.S.C.A.
§ 7104(b) (West 1991).
The record reflects that the veteran submitted his original
claim for service connection for a psychosis in February
1983. In a March 1983 rating action, the RO denied service
connection for a psychosis. That determination was confirmed
and continued in an August 1983 rating action. In August
1983, the veteran initiated an appeal on the issue of service
connection for a psychosis, and in August 1984, the Board
remanded the veteran's claim to the RO for additional
evidentiary development. Following development of the
additional evidence, the RO again denied the veteran's claim
for service connection in July 1985. The claim was returned
to the Board, and in December 1985, the Board issued a
decision, which affirmed the RO’s denial of service
connection for a psychosis.
As noted above, when an RO decision is affirmed by a
subsequent Board decision, the RO decision is subsumed by the
Board decision, and no claim of clear and unmistakable error
in that RO decision can exist as a matter of law. Duran v.
Brown, 7 Vet.App. 216, 224 (1994); 38 C.F.R. § 3.105(a).
Consequently, the veteran is precluded from raising that
issue and the RO has no jurisdiction to adjudicate a claim of
clear and unmistakable error in an RO decision which was
affirmed by the Board.
In the current claim, the July 1985 rating action was
subsumed by the December 1985 Board decision. Accordingly,
the veteran's claim of clear and unmistakable error in the
July 1985 rating action lacks legal merit and must be
dismissed.
ORDER
The appeal is dismissed.
GARY L. GICK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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